Explanatory Memorandum to COM(2022)53 - Amendment of Directive 2003/25/EC as regards the inclusion of improved stability requirements and its alignment with requirements of the International Maritime Organisation - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)53 - Amendment of Directive 2003/25/EC as regards the inclusion of improved stability requirements and its alignment with ... |
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| source | COM(2022)53  |
| date | 18-02-2022 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
This proposal concerns a modification of Directive 2003/25/EC of the European Parliament and of the Council of 14 April 2003 on specific stability requirements for ro-ro passenger ships1.
In the framework of the Commission Regulatory Fitness and Performance Programme (REFIT) and Better Regulation agenda and as an immediate follow-up to the fitness check on EU passenger ship safety legislation2, the Commission presented in 2017 three proposals amending such legislation. On 15 November 2017, the European Parliament and the Council adopted Directive 2017/21083, Directive 2017/21094 and Directive 2017/21105.
Directive 2003/25/EC governing specific stability requirements for ro-ro passenger ships was also part of that fitness check. However, the Commission did not present a proposal for its modification because at that time discussions were taking place within the International Maritime Organization (IMO) on stability standards for ships in damaged condition. Following the adoption of the revised international rules6, the Commission is now ready to propose the amendment of EU damage stability requirements.
The general objective of the revision of the EU passenger ship safety legislation is to simplify and streamline the existing regulatory framework, in order to (i) maintain EU rules where necessary and proportionate; (ii) ensure their correct implementation; and (iii) eliminate a potential overlap of obligations and inconsistencies between related pieces of legislation. The overarching objective is to provide for a clear, simple and up-to-date legal framework that is easier to implement, monitor and enforce, thus increasing the overall safety level.
For ships engaged in international voyages, which include voyages between two Member States, international conventions (under the purview of the IMO) and certain EU rules apply. The most relevant convention with respect to safety is the International Convention for the Safety of Life At Sea (SOLAS), 1974, and its Protocol of 1988. General stability requirements contained in SOLAS 90 (as defined in the text of the Directive with all applicable amendments), were established on a deterministic basis and were included in Regulation II-1/B/8 of the SOLAS Convention. These requirements are applicable in the entire Union owing to the direct application of the SOLAS Convention to international voyages and the application to domestic voyages of Directive 2009/45/EC of the European Parliament and of the Council of 6 May 2009 on safety rules and standards for passenger ships (Recast)7.
In addition to the international requirements, specific EU rules apply to passenger ships, ro-ro passenger ships and to high speed crafts. Directive 2003/25/EC lays down stability requirements for ro-ro passenger ships in damaged condition for all ro-ro passenger ships operating to or from a port of a Member State on a regular service, regardless of their flag, when engaged in international voyages. It aims to ensure their stability following damage, what improves the survivability of this type of vessels in case of collision damage. In the aftermath of the MS Estonia accident on 28 September 1994, eight European countries (including seven Member States) launched the initiative (Stockholm Agreement of 28 February 1996) to introduce a higher damage stability standard for ro-ro passenger ships in damaged condition in order to take into account the effect of water accumulation on the ro-ro deck and to enable the ship to survive in more severe states than the SOLAS 90 standard, up to 4 m significant wave heights. This initiative led the Commission to present a proposal for a Directive and the subsequent adoption of Directive 2003/25/EC by the European Parliament and the Council.
The EU specific stability requirements come on top of the SOLAS damage stability requirements to take account of water on the ro-ro deck when the ship is damaged, the amount of which depends on the freeboard in damaged condition and the significant wave height in the area of operation. The requirements laid down in Directive 2003/25/EC are also applicable to ro-ro passenger ships trading domestically within the European Union through Directive 2009/45/EC. This Directive divides ships and sea areas in four categories (A, B C and D) based on distance from the coast and critical wave height. For ro-ro passenger ships of Class A, B and C, the requirements of Directive 2003/25/EC must be applied.
The REFIT of the passenger ships safety legislation resulted into a recommendation to assess the possibility to align the EU regulatory approach on specific stability requirements for ro-ro passenger ships with international legislation, providing that the current safety level determined by Directive 2003/25/EC is at least maintained.
In view of the differences between the revised SOLAS Convention (version applicable as of 2020) and the specific EU damage stability requirements for ro-ro passenger ships, the need for Directive 2003/25/EC and its added value were assessed based on whether those SOLAS Convention requirements ensure the same safety level.
According to Commission REFIT’s conclusions and reflecting developments on the international level, the Commission was given the task to assess the possibility to propose to amend or repeal the specific EU damage stability requirements for ro-ro passenger ships, on the basis of international standards, if these were upgraded (as of 2020) in a satisfactory manner for the Union. With this aim, an expert study was carried out, which analysed the technical and policy options, namely the various options regarding the required subdivision index R, wave height limitations as imposed by Directive 2009/45/EC in a probabilistic concept and alternatives for additional deterministic requirements. It also assessed whether the requirements contained in Directive 2003/25/EC would remain relevant as long as the corresponding safety level determined at international level is not proven equivalent or superior.
Apart from the technical solutions for the damage stability calculations for various types of ships, the expert study results have also led to the recommendation not to account for wave height limitations in the probabilistic concept. The sample ship calculations did not show that wave-height limitations accounted for by either the normalised s-factor or expected critical wave height have significant impact on the overall survivability as expressed by the A-index. Therefore, there is no merit in introducing separate requirements with respect to the operational wave-height limitations for damage stability in a probabilistic concept.
Considering the results of the study and bearing in mind the general goal of simplifying and streamlining the EU regulatory framework for passenger ships safety, a proposal to amend Directive 2003/25/EC has been prepared. Specific objectives of its revision are to:
- Ensure consistency as far as practicable with the recently updated international damage stability standards as agreed at the IMO for passenger ships;
- Reduce the complexity as well as the technical and administrative burden, primarily stemming from two different regimes for evaluating the survivability of ro-ro passenger ships in damaged condition;
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- Reduce the ambiguity of definitions and requirements, where possible, in the light of the amended Directive 2009/45/EC; and
- Eliminate outdated provisions concerning international instruments no longer relevant or in force
For the sake of clarity and consistency, this proposal also updates numerous definitions and references to relevant EU legislation and SOLAS Regulations.
• Consistency with existing policy provisions in the policy area
The proposal is fully consistent with the three passenger ship safety Amending Directives adopted in December 2017 – Directives 2017/2108, 2017/2109, and 2017/2110. It also ensures consistency with Directive 2009/16/EC8 on port state control. The proposal is fully in line with the fitness check recommendations and the 2011 White Paper for the future of transport9 that recognised the need to modernise the current EU passenger ship safety legislative framework.
• Consistency with other Union policies
The proposal forms part of the Commission's REFIT programme and delivers on its Better Regulation agenda by ensuring that the existing legislation is simple and clear, does not create unnecessary burden and keeps pace with evolving political, societal and technological developments. It also delivers on the goals of the 2018 Maritime Transport Strategy by ensuring quality ferry services in regular intra-EU passenger transport.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal base of the Amending Directive is Article 100(2) TFEU, providing for measures to improve transport safety and for specific provisions for sea transport.
• Subsidiarity (for non-exclusive competence)
On request of the Council10, the EU passenger ship safety legislation has been principally modelled and shaped on the basis of the international requirements and in reaction to a number of major accidents (e.g. the accidents with the Herald of Free Enterprise, the MS Estonia). Compared to international standards encoded in the IMO conventions, certain aspects have been made more stringent at Union level, as it is the case for the damage stability requirements for ro-ro ships specified in Directive 2003/25/EC.
Most Member States are concerned by the passenger ship safety legislation as flag States as well as port States, the exception being 4 landlocked countries.
• Proportionality
The proposal has been prepared in view of the latest developments on the international level and the results of the Commission’s technical study that compared the regulatory framework as provided by Directive 2003/25/EC with the one provided by SOLAS 2020, identifying and providing evidence of any potential safety gaps between the two sets of rules. The Commission also identified, assessed and considered alternative measures that could close such safety gaps (towards an increased safety) by taking into account the overall survivability of the ship.
The proposal to amend damage stability requirements for newly built and newly certified ro-ro passenger ships, remove overlaps and outdated definitions and references is considered as the only proportionate and coherent option. It ensures that the current high level of safety is not compromised.
In accordance with the principle of proportionality, a Directive remains the most suitable form for achieving the objectives. It establishes common principles and safety levels, ensures their enforcement but leaves the choice of practical and technical procedures for their implementation to each Member State. In doing so, it leaves it each Member State the responsibility to decide on the implementation tools which best fit its internal system. A Directive also ensures that the simplification objective of this proposal is achieved to the maximum extent possible, albeit it will be ultimately determined by each Member State during implementation.
• Choice of the instrument
With a view to ensuring clear and consistent legal drafting, the most adequate legal solution is considered to be an amending Directive.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The fitness check showed that the key objectives of the EU passenger ship safety legislation related to passenger safety are being overall met and remain highly relevant. The EU passenger ship safety legal framework resulted in a common safety level for passenger ships within the Union and a level playing field between operators as well as an increased transfer of ships between Member States. The fitness check also showed that there is scope for further enhancing the level of safety as well as the efficiency and proportionality of some of the regulatory requirements. Recommendations were made to simplify, clarify and repeal a number of ambiguous, outdated or overlapping requirements. With respect to the damage stability requirements, the fitness check recommended to assess the possibility to propose amending or repealing the specific EU damage stability requirements for ro-ro passenger ships, on the basis of the upgraded international standards.
• Stakeholder consultations
Given the technical nature of the envisaged proposal, a targeted consultation has been chosen as the most adequate consultation tool. National experts have been consulted in the framework of the Passenger Ship Safety Expert Group. In the framework of the outsourced technical study, two workshops were organised where all the Member States as well as industry and passenger associations were invited to participate.
The results of the technical study outsourced by the Commission for the purposes of the preparation of this revision are provided in the Staff Working Document accompanying the proposal. The proposed structure of damage stability requirements according to the capacity of the ships was supported by a large majority of national experts. Based on carefully reviewed comments made by the national experts and stakeholders, temporary alternatives were introduced in the proposal for newly built ships certified to carry 1350 persons or fewer. The use of these two options would be evaluated ten years after the Amendment’s implementation.
All comments and proposals presented by the national experts and industrial stakeholders during the discussions in the expert group meetings were evaluated having in mind the overarching objective of ensuring that the existing level of safety is at least maintained.
• Collection and use of expertise
This review builds primarily on the data collected during the fitness check process as reported in the Commission Staff Working Document Adjusting course: EU Passenger Ship Safety Legislation Fitness Check, adopted in 16 October 201511.
In addition to the data and consultation carried out in the framework of the fitness check, the preparation of this simplification proposal necessitated an input from technical and legal experts regarding the concrete formulation of technical definitions and clear legal drafting. This expertise was gathered within the Commission, the European Maritime Safety Agency (EMSA) and the Passenger Ship Safety Expert Group. It is reported on in the Staff Working Document accompanying the proposal.
• Impact assessment
The proposal is an immediate follow-up to the fitness check that identified the issues for alignment and simplification in detail and assessed the simplification potential. As highlighted in the Staff Working Document, this proposal is of a highly technical nature. The proposal is based on the results of a technical study conducted in cooperation with highly specialised experts having specific knowledge in this area. In addition, this initiative provides for an alignment with the international rules established by the IMO. In line with the Commission's Better Regulation Guidelines, a fully-fledged impact assessment has not been carried out.
Nonetheless, this proposal is accompanied by a Commission Staff Working Document that recalls the recommendations of the fitness check and explains the rationale of the proposed solutions from a technical as well as a legal perspective. It includes a summary of results of the Commission’s technical study carried out in support of this initiative
• Regulatory fitness and simplification
The main objective of this proposal is to reduce complexity, technical and administrative burden with respect to damage stability requirements, primarily stemming from two different regimes of evaluating the survivability of ro-ro passenger ships in damaged condition. It also aims to provide for consistency as far as practicable with the recently updated international damage stability standards as agreed at the IMO for passenger ships. The envisaged alignment with international rules and the simplification will rationalise the calculation burden of shipbuilding companies and operators.
• Fundamental rights
The proposal has no consequences for the protection of fundamental rights.
4. BUDGETARY IMPLICATIONS
The proposal has no implications for the Union budget.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
According to the Better Regulation Guidance12, Implementation Plans are not required for directives with very technical scope.
Adequate monitoring and reporting arrangements have been identified for the Member States, considering the fact that alternative technical solutions have been proposed for certain categories of ships in the draft Amending Directive. The key data on newly built ships and the damage stability calculations will be collected and evaluated with the assistance of EMSA. After ten years of the implementation of the revised requirements, an evaluation will be carried out and the Directive would be revised.
• Explanatory documents (for directives)
Explanatory documents are not required: while the amended requirements contained in the Directive are of technical nature, they are not of a complex nature for their target recipients.
• Detailed explanation of the specific provisions of the proposal
Article 1 of the draft amending Directive forms its main part and contains amendments to numerous provisions of Directive 2003/25/EC.
Purpose, scope and definitions
In point 1, a number of existing definitions is amended, such as “existing ship”, “new ship”, “regular service”, “port state” and “specific stability requirements”.
Significant wave heights
Point 2 better defines the notion of “significant wave heights” and limits its application to ships that will comply with the specific damage stability requirements contained in section A of Annex I to Directive 2003/25/EC.
Sea areas
Point 3 has simplified the obligation of Member States to publish their lists of sea areas together with the significant wave heights values.
Specific stability requirements
Point 4 contains the revised specific stability requirements. These rules are divided a) according to the date when the keel of ships was laid or when the ships were at a similar stage of construction; and b) according to the capacity of the ships to carry passengers on board. Existing and already certified ships will continue to apply the current requirements, while newly built and newly certified ships put into regular service operation in the EU will need to comply with the updated international rules (SOLAS 2020 for ships with the capacity to carry more than 1350 persons on board) combined with the specific EU requirement for R-index (SOLAS 2020 + SDC3 level of R-index value - for ships with the capacity to carry 1350 or fewer persons on board).
For a transitional period of ten years, two alternatives of the stability requirements have been provided to ships with the capacity to carry 1350 or fewer persons on board – the current rules in section A of Annex I or the updated ones in section B of Annex I. After the period of ten years, the use of these two options would be evaluated and the Directive revised accordingly.
Point 5 deletes the redundant provisions on the “introduction of the specific stability requirements” – process that followed the adoption of Directive 2003/25/EC.
Point 6 contains necessary amendments to the provisions related to “Certificates”. These changes stem from the introduction of a new section B of Annex I in Directive 2003/25/EC and from the modifications introduced by Directive (EU) 2017/2110, which abandoned the concept of ‘Host State’ and replaced it by the term ‘Port State’.
Point 7 amends provisions related to “Seasonal and short-time period operations”, reflecting the revision of ‘Host State’ to ‘Port State’, as well as the limited application of the significant wave height concept to ships complying with the stability requirements contained in section A of Annex I.
Point 8 announces the review of the implementation of the revised stability requirement ten years after their adoption.
Point 9 contains several formal revisions to the current stability requirement to be contained in section A of Annex I.
Point 10 introduces new specific stability requirements in section B of Annex I.
Point 11 introduces new Annex III, which defines the set of technical data that Member States shall notify to the Commission for all newly built and newly certified ro-ro passenger ships introduced in regular operation in the Union. This data would be used for the purposes of the evaluation of the implementation of the amended Directive 2003/25/EC.